' MUHAMMAD ASLAM (MEMBER-II).---The appellant Sardar Naseer Ahmad, an officer of local council service BS-17 was working as Chief Officer, Municipal Committee, Sahiwal since September, 1994 wherefrom he was transferred after one year and two months in November 1995 to report for further duty to the Punjab Local Government Board, Lahore which he did on 28-11-1995.
Subsequently, he was posted as Chief Officer, Zila Council, Narowal vide order dated 25-1-1996 issued by the Secretary, Local Government and Rural Development Department respondent No,1.
He joined the post on 31-1-1996. After a couple of weeks, another order was issued by respondent No,1 on 15-2-1996 transferring the appellant with the direction to report to the Punjab Local Government Board, Lahore, for further posting, and in his place, Mr. Muhammad Mansha Javed BS- 16 Taxation Officer, Zila Council, Narowal was posted as Chief Officer, Zila Council, Narowal in his own pay and scale. The appellant filed the instant appeal on 18-2-1996. '
2. The appellant has requested for the cancellation of the impugned Notification dated 15-2-1996 on the grounds that he had not yet completed any significant part of his tenure at Narowal; that his transfer from Narowal is the result of political victimization, and not in public interest; that it was made in pursuance of a directive from the Chief Minister, that this transfer is unwarranted as there was no complaint against him from any quarters; that the transfer is not legal inasmuch as the appellant is in BS-17, the scale of the post of Chief Officer, Zila Council, Narowal, whereas respondent No,2 is an officer in BS-16.
3. Respondent No,2 has stated that the appellant himself set the political ball rolling for his posting as Chief Officer, Zila Council, Narowal and the said respondent merely acted in response to secure his posting as Chief Officer through the directive issued by the Chief' ,Minister; that the appellant was posted at Narowal during the ban on transfers' imposed by the Chief Minister vide his directive dated 28-12-1995-R-2/A and that the Chief Minister relaxed the said ban in favour of respondent No,2 and further, the Chief Minister being the competent Authority to make and relax the rules, no exception can be made on the ground of violation of rules.
'
4. The Secretary, LG&RD Department (respondent No,1) in his written objections has stated that he is competent to issue the order of transfer the impugned order, under section 42(b)(4) of the Punjab Local Board Ordinance, 1979 and rule 15(1)(d) the Punjab Local Government Board Conduct of Business Rules, 1984, and that every member of the Service is liable to serve anywhere within the Province as per rule 10 of the Punjab Local Council Service (Appointment and Condition of Service)
Rules, 1983 in which no time limit has been indicated.
5. The appeal first came up for hearing on 19-2-1996 when the operation of the impugned order was suspended. However, the operation of this interim order was suspended by the learned Supreme Court on 4-3-1996 in Constitutional Petition No,1022-L of 1996 and as a consequence the interim order dated 19-2-1996 was also recalled by the learned Member-I in due deference to the aforementioned order of the learned Supreme Couri. However, the leave for appeal against the interim order of this Tribunal was refused by the learned Supreme Court on 10-4-1996. On this, the learned counsel for the appellant strongly pleaded for restoration of the interim order dated 19-2- 1996 of this Tribunal on the ground that since there is no order of the status quo now in the field, the earlier order dated 19-2-1996 may be confirmed, particularly when the appellant had statedly taken the charge as Chief Officer, District Council Narowal, after the final order of the learned Supreme Court was passed on 10-4-1996. The learned counsel for respondent No,2, however, maintained that the said respondent was still holding the charge. After consideration it was felt that this issue will stand resolved alongwith the decision on the main appeal.
6. The relevant provisions of law and rules were perused alongwith the record of the case and arguments were heard. There is no dispute about the facts of the case or the legal provisions.
Political influence was also admittedly used by both the parties. It was also found that the transferring authority did not undertake any examination of the case before issuing the orders of transfer of the appellant as well as respondent No,2 as Chief Officer, Zila Council, Narowal. The transferring authority simply passed on the political recommendations and directions in the form of orders of transfer.
7. Respondent No,1 (Secretary, LG&RD Deptt.) is ex-officio Chairman of the Punjab Local Government Board as per section 42-A of the Punjab Local Government Ordinance, 1979 and is competent as such to perform certain executive functions of the Punjab Local Government Board enumerated in section 42(b)(4) of the said Ordinance, including the function of transferring the Officers of Local Council Service under rule 15(i)(d) of the Punjab Local Government Board (Conduct of Business) Rules, 1984. However, the main legal plank on which the power to transfer rests in rule 10 of the Punjab Local Council Service (Appointment and Condition of Service) Rules, 1983 which reads as under:-- "10. Posting and transfer.----Every member of the service shall be liable to serve anywhere within the Province: provided that if he is required to serve in a post outside his functional unit, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve."
8. It is, however, noteworthy that by invoking rule 10 above, respondent No,1 has particularly stated that no time-limit has been indicated in the said rule meaning thereby that, according to him any officer can be transferred at any time regardless of the requirements or the need for allowi him to stay against a post for any length of time. This rule in fact has been invoked to justify the transfer of the appellant back from Narowal after 1-5 days. This argument is open to serious questions. First, rule 10 which is analogous to sectiot-9_of the Punjab Civil Servants Act, 1974, simply lays down the liability of a civil servant for transfer to any post; it is neither about the eligibility of a civil servant to hold a post nor about the necessity to transfer him; it cannot meet a situation where a civil servant's fitness for a post or the desirability to transfer him is to be examined. Such matters are regulated by separate set of rules and policy instructims issued by the Government relating to posting and transfer of civil\ servants particularly in view of rule 22 of the rules referred to above which is reproduced below:--- "22. General Rules.---In all matters not expressly provided for in these rules and subject to the general directions of the Board, members of the Service shall be governed as nearly as possible by the Punjab Civil Service, Rules, Punjab Civil Service Pension Rules, Punjab Civil Servants T.A. Rules, W.P. Government Servants (Medical Attendance) Rules, 1959 and such other general Rules as may have been or may hereafter be prescribed by Government from time to time."
9. In this connection, the transfer policy issued by Government on 16-3-1980 is applicable: main point of the said policy are summarized below:---
(i) No transfers shall normally be made except on completion of tenure which admittedly is normally three years, compassionate grounds, disciplinary grounds, on promotion/demotion or administrative requirements.
(ii) To ensure stability in appointment, to encourage professionalism, providing all round experience to be individual officers, to avoid stagnation in performance; repeated appointments to the same type of job need to be avoided unless the some special cases, specialization is desired; the transfer policy is to be guided foremost by the service of public interest and the individual's interest is to be integrated therewith as far as possible; important assignments need to be filled in by those officers who have good record of service so that they may develop their talent and may make maximum contribthion to the public welfare; where officers show certain weakness in professional and character traits, they may be so positioned as to be amendable to direction, advice and guidance.
' The above mentioned, provisions of the transfer policy lay down the criteria which has to be followed by the transferring authority while considering a person to be shifted from a post or to post a civil servant.
10. Interestingly, the learned counsel for the appellant as well as the learned counsel for respondent No,2 have both relied on PLD 1995 SC 530 to make the point against each other for bringing outside influence on the transferring authority "Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as incharge of administrative department of Government are not expected to carry with them a deep insight on the complexities of administration. The duty of a bureaucrat, therefore, is, to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action."
' In the concluding part of the said judgment it was observed as follows:--- "We are constrained to observe that such unconcerned and lukewarm attitude on the part of Head of a Government Department is not expected to promote disciplinary or efficiency in the department. On the contrary such attitude may have a demoralizing effect on his subordinates encouraging them to seek intervention and favours of outside agencies, which may ultimately adversely affect the overall discipline and efficiency in the department. We, therefore, expect that the guidelines mentioned in the policy directives of the Government referred to above and the provisions of Rule 21 of the Rules of Business, (ibid), will be kept in view by all concerned while dealing with the transfers of Government servants. The office is directed to send a copy of this judgment to the Government of Punjab for circulating it to all its departments, or future guidance.
With these observations, this petition stands dismissed as not maintainable."
11. The learned counsel for respondent No,2 referred to 1992 PLC (C.S.) 117 to point out that his client only reacted to the first political move made by the appellant. In this connection, he particularly referred to the following portion from the said judgment:--- "As the petitioner himself set the ball rolling by utilizing political influence and pressure, to gain an advantage, it may not be just to interfere for perpetuating his gain, though the respondent No,3 also acted similarly to stick to his post."
' The learned counsel further referred to 1996 PLC (C.S.) 288; the relevant paragraph from the said judgment is as follows:--- "In appropriate cases of extraordinary nature, this jurisdiction perhaps can be exercised in favour of only those persons who are not influential enough to go to the Chief Minister/M.N.A./M.P.A.
' In the instant case petitioner was the first to obtain order from the Chief Minister Secretariat for obtaining his transfer to Lahore before the expiry of the normal period of tenure at Kacha 'Chu.
Therefore, he is not entitled to the discretionary relief in this petition. Accordingly, this petition is dismissed in limine."
12. This argument, however, does not go far enough to help respondent No,2 inasmuch as the first political move by his opponent only placed him at a comparatively lesser disadvantage when seen in the light of political tussle, and does not extend to give his case the cover of legality that has to be established independently. It would be useful to refer to the observations of the learned Judges of the Superior Courts to the effect that although transfer is an incident of service, and Government has wide discretion to use this power, it is the competent Authority alone who is the basic judge to decide how to use this power. It would be sufficient to quote from the judgment reported as 1992 PLC (C.S.) 117 wherein the following observations were made.
"In the tug of war waged on the strength and weight of political influence to gain edge over each other, the public functionary vested with powers to make the order was a helpless creature and made to act as his Master's voice. To say the least, it is a misfortune and depicts a saddening phenomenon in public administration. Rapidly increasing political interference with administrative matters relating to services is fast eroding discipline in them and is adversely affecting their efficiency and capacity to perform their public duties independently. I am constrained to make these observations since this Court is being flooded with writ petitions arising out of transfer matters wherein allegations of mala fides, nepotism and political interference are made, and, in some cases record gave support to the allegations. In decided cases, the view has been taken that it is an accepted principle that in public service, transfer is an incident of service. It is also an implied condition of service and appointing authority has wide discretion in the matter. The Government is the best judge to decide how to distribute and utilise the service of its employees.
However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive, it would amount to mala fide and colourable exercise of power.
Frequent transfers, without sufficient reasons to justify such transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose that is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even the administrative actions should be just and fair."
13. The learned counsel for respondent No,2 has also relied on 1993 SCMR 1326 and PLD 1971 SC 846 to argue that the Chief Minister was competent to make an order on the ground that the authority which can make the rule can also relax the rules. In the first case, the Chief Minister regularised the services of an officer who had been appointed on ad hoc basis and in the second case the Governor had approved the method of selection of candidates for appointment after their successful completion of training. The instant case is distinguishable in that the Deputy Secretary, office of Senior Minister wrote a letter to the Secretary respondent No,1 to the effect that the Senior Minister had desired, on presentation of an application, that respondent No,2 may be placed as Chief Officer, Zila Council, Narowal. The copy of this letter dated 7-2-1996 was also endorsed to the M.N.A., which indicates that the desire of the Senior Minister was prompted by the said M.N.A. It has not been denied that the directive of the Chief Minister was also obtained through the use of political influence.
14. The factual position is that the appellant who was transferred from Sahiwal and directed to report to the Punjab Local Government Board was posted to Narowal simply on the recommendation of local M.N.A. And no examination of the case was undertaken as per requirements of the policy and rules according to which the posting of the officer should have been based on the assessm ent of his service record, aptitude, requirements of job and public interest. This was not done and the impugned order was passed without the competent Authority making an independent decision. His transfer back from Narowal was again made without making an independent decision and giving any reasons. The posting of respondent No,2 has also been done similarly. No reason has been given why the officer in BS-16 has been posted against the post in BS-17; it has not been shown if respondent No,2 had a special aptitude, expertise or skill for this very post and that none of the available persons in BS-17 was suitable for the post. It would be hardly necessary to point out that the situation has arisen on account of failure to act in accordance with the law and rules.The practice of yielding to the demand of civil servants activated through the use of external and political influence represents a clear contradiction in precept and practice. The job of filling up the posts can be done only in public interest which should be in consonance with the interest of the civil servant in performing his official functions.
The task of fusing the public and individual interests and of removing the contradiction can be performed only through effective exercise of bureaucratic power in accordance with the criteria enshrined in the rules, law and policy. Deviation from such criteria cannot be supported or justified by invoking section 9 of the Civil Servant Act, 1974 or rule 10 of the Local Council Service (Terms and Conditions of Service) Rules, 1983 which do not provide a licence for fixing square pegs in round holes or shifting the officers under extraneous pressure without regard to the provisions of law, policy, rules and above all, the public interest. These provisions certainly do not support an action taken by the authority without applying his own mind. Such an act would not only be illegal but also mala fide. We would like to refer to rule 10(4) of the Punjab Government Rules of Business, 1974 which lays down the course of action open to a competent Authority whenever a situation like the one in the present case arises. The said provision is as follows:--- "If an order contravene any law, rule or policy decision, it shall be the duty of the officer next below the officer making such order to point it out to the officer making the order and the latter shall refer the case to the next higher authority."
' No attempt was made at any administrative level in the responding department to point out the competent Authority the patent illegalities in the case.
15. It is clear that neither the appellant nor respondent No,2 can legally claim to be posted as Chief Officer, Zila Council, Narowal as both of them have failed to establish any violation of terms and conditions of their service Whereas both have violated the provisions of conduct rules. In this connection, Rules 19 and 29 of the West Pakistan Government Servants (Conduct) Rules, 1966, applicable to the parties in this case vide Rule 18 of the Punjab Local Council Service (Terms and Conditions of Service) Rules, 1983, provide as under:--- "19. Approach to Members of the Assemblies, etc.---No Government Servant shall, directly or indirectly, approach any Member of the National Assembly or a Provincial Assembly or any other nonofficial person to intervene on his behalf in any matter.
29. Use of political or other influence.---No Government servant in support of any claim arising in connection with his employment as such."
16. The provisions of the above rules are clearly attracted in the instant case and as such the transfer of both the parties makes them liable to disciplinary action for misconduct under rule 5 of the Punjab Local Councils Service E&D Rules, 1990; the term "misconduct" has been defined in the said rules as follows:--- 'Misconduct' means conduct prejudicial to good order or service discipline or contrary to the provisions of such conduct rules as may be applicable to the members of the Punjab Local Council Service, or conduct unbecoming of an officer and gentlemen and includes any set on the part of a member of the Punjab Local Council Service, to bring or attempt to bring indirectly or other outside influence directly or indirectly to bear on the Governor, the Chief Minister, a Minister of any Government Officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service."
17. In addition to the action under the abovementioned rules a civil servant is also liable to earn adverse remarks for using extraneous influence in the matter of his posting and transfer. In this connection, the Circular Instructions No,SOR-IV-S&G AD 1-3/1982, dated 6-6-1982 are quite clear and are produced below:--- "I am directed to say that in spite of repeated reiteration of the provisions of Rules, 19 and 29 of the Government Servants (Conduct) Rules, 1966 instances of violation of these provisions continue to come to the notice of Government. Some Government servants persist in bringing extraneous pressure on concerned authorities in respect of their posting, transfer and other conditions of service. This amounts to 'misconduct' which, as defined in Rule 2(1)(d) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, means conduct prejudicial to good order or service discipline, or conduct unbecoming of an officer and a gentleman. It includes any act on the part of a civil servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Governor, the Chief Minister, a Minister, or any Government Officer in respect of any matter relating to appointment, promotion, transfer, punishment, retirement and other conditions of service of a civil servant.
2. The Government has taken serious view of this situation and it has been decided that any Government servant indulging in such activities shall be severely dealt with. As a general rule besides any other action that may be considered necessary in individual cases a note regarding violation of aforementioned rules and instructions, shall be straightaway placed in the C.R. Dossier of the concerned officer. Particularly care should be taken about violation in matters of posting and transfer and authorities under whom Government servants under transfer are serving should avoid intervening on behalf of their subordinates on the plea of indispensability or provision of a substitute. A very strict view will be taken of such intervention in future."
18. These instructions were further reiterated vide No, SORIV(S&GAD) 1-1/86, dated 18-3-1986, reproduced as under:-- "I am directed to invite your attention to instructions issued vide this Department's Letter No, SOR- IV-1-3/82, dated 6th June, 1982 on the subject noted above and to say that these are still being violated by certain Government servants. According to the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 any act on the part of a civil servant to bring or attempt to bring political or outside influence directly or indirectly to bear on the Governor, Chief Minister, a Minister or any Government Officer in respect of any matter relating to appointment promotion, transfer, posting, punishment, retirement or other conditions of service of a civil servant, constitutes misconduct which is liable to disciplinary action under the (Efficiency and Discipline) Rules, 1975. It is reiterated that strict observance of instructions should be ensured and any civil servant violating those should be severely dealt with and entry to this effect should be recorded in his Character Roll dossier."
19. We are in no doubt that by strict adherence to the provision of law and rules relating to transfer, and by invoking the provision of conduct rules, E&D Rules and instructions referred to above, the incidence of outside interference with the work of competent Authorities will diminish.
20. As is obvious in this case both the appellant and respondent No, 2 tried to overwhelm the competent Authority through their political influence by not allowing it to act independently and justly. This tendency on the part of the civil servants is paralysing the functionaries. The vested interests have to be discouraged for the sake of good governance, promoting public interest and for strengthening the institutions. We, therefore, cannot uphold the impugned order. At the same time, we are unhappy over the transfer of respondent No, 2 to his present posting at Narowal made in the absence of exercise of powers in accordance with the law referred to above. Under the circumstances we feel that the Government should decide the whole matter de novo. It will be worth considering if both the officers, are deprived of the posting at Narowal which has led to the present race inter see them and which was obviously for the purpose not activated with a desire for service to the people. Let others who are in this race of using political influence also take a lesson from the Government decision of depriving both of these of Narowal posting so that they are discouraged from using undue political influence, in the matter of their transfer.
21. The appeal is disposed of in the light of these observations.